United States v. Kungys

• Decision Date: 28 September 1983
• Docket Number: Civ. A. No. 81-2305.
• Citation: 571 F. Supp. 1104
• Parties: UNITED STATES of America, Plaintiff, v. Juozas KUNGYS, Defendant.
• Court: U.S. District Court — District of New Jersey

571 F. Supp. 1104

UNITED STATES of America, Plaintiff, v. Juozas KUNGYS, Defendant.

Civ. A. No. 81-2305.

United States District Court, D. New Jersey.

September 28, 1983.

W. Hunt Dumont, U.S. Atty., Newark, N.J. by Joseph F. Lynch, Jovi Tenev, Roger D. Einerson, U.S. Dept. of Justice, Washington, D.C., for plaintiff.

Williamson & Rehill by Donald J. Williamson, Newark, N.J., and Ivars Berzins, Babylon, N.Y., for defendant.

DEBEVOISE, District Judge.

This is an action which the United States, acting through the Office of Special Investigations of the Criminal Division of the United States Department of Justice, instituted against defendant Juozas Kungys pursuant to Section 340(a) of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. § 1451(a), seeking to revoke defendant's citizenship. Jurisdiction is properly asserted under 28 U.S.C. § 1345, 8 U.S.C. § 1421(a) and 8 U.S.C. § 1451(a).

A summary of the government's charges upon which the complaint is based is as follows: During the first two months after the June 1941 German invasion of Lithuania (which the Soviet Union then occupied) defendant organized and led an armed group of civilians which actively assisted the Germans in the arrest and execution of persons who had been government and communist party leaders in the District of Kedainiai during the Soviet occupation. Defendant's armed group assisted the Germans in confining the 2500 Jews of the Kedainiai District in a ghetto and then assisted the Germans in bringing these Jewish citizens to a horse breeding farm. Defendant's armed group under defendant's personal direction joined with German soldiers of Einsatzkommando 3 in bringing the Jewish captives in groups of 200-300 from the farm to a huge pit where the German soldiers and defendant and his group shot and then buried their victims in earth and lime. Thereafter, according to the government's charges, defendant moved to Kaunas where he became manager of a German controlled industrial concern. In 1944 when the Soviet Armies overran the German forces in Lithuania defendant preceded the retreating German army into Germany where he resided until his immigration to the United States in 1948.

The government charges that in the course of applying for entry into the United States and for citizenship, defendant made the following false statements:

On or about January 9, 1947 at Stuttgart, Germany, defendant executed under oath an "Application for Immigration Visa (Quota)" Number 1530 and an "Alien Registration Foreign Service Form" Number 6887153. Defendant was interviewed by a United States Vice Consul to determine his eligibility for immigration. An interpreter was available to assist if needed. In order to elicit the information contained in those forms, defendant was asked questions concerning his background and wartime activities. He was then asked to ratify that information under oath in the Immigration Visa and the Alien Registration forms. In providing such information, defendant misrepresented and concealed the following facts:

a. Defendant swore that he was born on October 4, 1913, and thereby concealed the true date of September 21, 1915.

b. Defendant swore that he was born in Kaunas, Lithuania, and thereby concealed his true place of birth, Reistru, Lithuania.

c. Defendant swore that he resided at Telsiai, Lithuania during the period 1940-1942, and thereby concealed his true place of residence in Kedainiai, Lithuania during the period December 1939 to October 1941.

d. Defendant swore that he was not a criminal when in fact he had participated in the persecution and murder of over 2000 unarmed civilians.

e. Defendant swore that during the five-year period preceeding sic January 1947 he had been occupied as a student, dental technician and farm and forestry worker. Defendant thereby concealed his now-claimed employment as a bookkeeper during the period 1942-1944.

f. Defendant represented that he was married to Sofia Kungys nee Anuskeviciute when in fact he was not.

In connection with his visa application defendant presented United States officials with a forged Lithuanian Identity Card dated April 1944 and a false birth record fraudulently obtained from the Vatican representative in Germany.

Based upon the aforementioned application, the United States Consulate at Stuttgart issued defendant on March 4, 1948 Quota Immigration Visa No. 114 pursuant to the provisions of the Immigration Act of 1924, Pub.L. No. 68-139, 43 Stat. 153, as amended.

Defendant entered the United States at New York, New York on April 29, 1948 upon presentation of the aforementioned visa. The defendant was examined by an Immigration Inspector at the Port of Entry to determine his fitness to enter the United States.

On or about May 29, 1948, defendant executed under oath an "Application for Certificate of Arrival and Preliminary Form for a Declaration of Intention" No. 119188 (Form N-300). In said form N-300, defendant misrepresented and concealed the following facts:

a. Defendant swore that his date of birth was October 4, 1913, and thereby concealed his true date of birth, September 21, 1915.

b. Defendant swore that he was born in Kaunas, Lithuania, and thereby concealed his true place of birth, Reistru, Lithuania.

c. Defendant swore he was married to Sofia Kungys nee Anuskeviciute on August 24, 1943 at Kaunas, Lithuania when in fact he was not.

On or about May 11, 1953, defendant executed an "Application to File Petition for Naturalization" No. 92961 and an attached "Statement of Facts for Preparation of Petition" (together comprising Form N-400). In said form defendant misrepresented and concealed the following facts:

a. Defendant swore that he had not given false testimony to obtain benefits under the immigration and naturalization laws when in fact he had given false testimony to the United States Consul at Stuttgart, Germany in order to obtain a visa and to the Immigration and Naturalization Service (hereinafter "INS") in order to obtain entry to the United States and to obtain citizenship.

b. Defendant swore that he had never committed a crime involving moral turpitude when in fact he had participated in the persecution and murder of over 2000 unarmed civilians.

c. Defendant swore that his date of birth was October 4, 1913, and thereby concealed his true date of birth, September 21, 1915 d. Defendant swore that he was born in Kaunas, Lithuania, and thereby concealed his true place of birth, Reistru, Lithuania.

e. Defendant swore that he was married on August 24, 1943 to Sofia Kungys nee Anuskeviciute in Kaunas, Lithuania when in fact he was not.

On October 23, 1953, at a naturalization examination, defendant reviewed the N-400 and swore the contents were true.

On October 23, 1953, defendant executed under oath at a naturalization examination a "Petition for Naturalization" No. 92961 (Form N-405). In said petition, defendant misrepresented and concealed the following facts:

a. Defendant swore that his date of birth was October 4, 1913 and thereby concealed his true date of birth of September 21, 1915.

b. Defendant swore that he was born in Kaunas, Lithuania and thereby concealed his true place of birth, Reistru, Lithuania.

c. Defendant swore that he was married to Sofia Kungys nee Anuskeviciute on August 24, 1943 in Kaunas, Lithuania when in fact he was not.

On February 3, 1954, the United States District Court at Newark, New Jersey, granted defendant's petition for naturalization and issued to him Certificate of Naturalization No. 7131022.

Pretrial Order pp. 9-12.¹

Defendant denies that he ever committed any crime and in particular that he participated in any way in the killing of the communist and government leaders and the Jewish population of Kedainiai. According to him in 1939 he commenced employment with the Kedainiai branch of the Lithuanian Bank and boarded at the home of the parents of the woman who later became his wife. In July 1941, before either of the mass killings which form the basis of the government's charges, he left Kedainiai to seek employment in Kaunas. From July until the fall he was employed in a print shop there; from the fall until Christmas he was a seminarian at the Telsiai Seminary; and after Christmas he returned to Kaunas and was employed first in the print shop and then in a small, family owned factory until the summer of 1944 when the Soviet forces again entered Lithuania. He claims to have participated in the work of the anti-German resistance while in Kaunas. He further claims that upon the approach of the Soviet Army he, his wife and members of her family fled as refugees to Germany eventually reaching what became a part of the French occupied zone.

Defendant admits that he gave false information during his immigration and naturalization proceedings concerning the date and place of his birth and concerning certain details of his employment during the period of the original Soviet occupation and the German occupation. He asserts that the false information was not material to any of the proceedings and insofar as the date and place of birth is concerned arose out of the necessity of obtaining a false identification card during the German occupation of Kaunas to avoid detection of his underground activities and to avoid mobilization into the German armed forces.

To support its most serious charges the government relies upon deposition testimony of Lithuanian witnesses taken in Vilnius with the cooperation of the Soviet authorities. Defendant contends that this testimony upon which the government relies to connect him to the killings in Kedainiai is false and is the product of a continuing effort of the Soviet Union to safeguard its hold upon the occupied Baltic states by discrediting emigres from those countries with fabricated charges that they committed war crimes during the period of the German occupation.

The case was tried without a jury. The evidence consists of the testimony of witnesses, deposition...